Microcell loses unjust discriminatory marketing case before CRTC

Microcell Telecommunications Inc. has suffered a defeat in its battle with Rogers Wireless Inc. (RWI) and Bell Mobility over unfair and unjust discriminatory marketing practices. On April 28, the CRTC denied the struggling wireless operator’s application seeking a cease and desist order for its two rivals’ activities (Telecom Decision 2003-26). The case stems from a Part VII application Microcell filed in August 2002 alleging that the two larger competitors were luring its customers away in an unjust discriminatory manner (RoW, Sept. 16/02). The commission ruled that Rogers Wireless and Bell Mobility did target Microcell’s post-paid customers in a discriminatory manner, but that the discrimination was not unjust under section 27(2) of the Telecommunications Act. It determined that the two special offers were not available to other subscribers or potential new subscribers, as claimed by RWI and Bell Mobility, but that the offers were still valid marketing practices. "In making their offers, RWI and Bell Mobility were accordingly discriminating in relation to the provision of a telecommunications service, and the burden of establishing that the discrimination was not unjust was placed on them. In the commission’s view, they discharged this burden in the circumstances of the present case," the CRTC writes in its April 28 ruling. "The commission finds that, in the robustly competitive circumstances of the wireless market, the RWI and Bell Mobility offers, while discriminatory, do not constitute behaviour that amounts to unjust discrimination within the meaning of section 27(2) of the Act." To determine the level of competition in Canada, Microcell tried to paint the competitive landscape being dominated by one or two players. It suggested that incumbent wireless providers had to be considered as a single entity. The commission rejected that argument. "The commission considers that resale and roaming agreements do not inhibit competitive rivalry between parties and that Telus Mobility and the BCE wireless affiliates must be considered as separate competitors when assessing the level of competitiveness in the market for wireless services," the CRTC writes. Microcell receives some credit from commission However, the commission did side with Microcell on some points. In its decision, it rejected Rogers Wireless’ assertions that Microcell’s allegations fell outside of the CRTC’s jurisdiction because they did not cover primarily issues of network access. The CRTC ruled that based on Decision 96-14, it had the right to intervene in matters other than those just dealing with network access. The CRTC didn’t buy Bell Mobility’s argument that Microcell had to demonstrate that it had unjustly discriminated against Microcell in relation to the provision of telecommunications services. "The commission considers that its powers under section 27(2) of the Act do not relate solely to telecommunications services provided by one carrier to another … and that the commission’s powers under section 27(2) are sufficiently broad to consider allegations brought forward by Microcell in this application," the CRTC writes. It’s unclear at this point whether Microcell will take further action in support of its claims. Representatives from Microcell were unavailable for comment at press time. The record of the proceeding is available here.

Microcell loses unjust discriminatory marketing case before CRTC

News | 04/29/2003 4:00 am EDT

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